Appeal from the Circuit Court of Lake County. No. 08-L-866 Honorable Christopher C. Starck, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.
¶ 1 Plaintiff, Stanley Olson, appeals from an order of the circuit court granting summary judgment to defendant, Williams All Seasons Company (Williams), in this negligence action arising from injuries Olson sustained when he fell while responding to a fire alarm at Williams' building. On appeal, Olson argues that: (1) the circuit court erred in granting summary judgment, because Williams' negligence proximately caused Olson's fall; and (2) the fireman's rule provides no basis to affirm the circuit court's order. We reverse and remand for further proceedings.
¶ 3 On October 17, 2008, Olson filed a complaint seeking monetary damages for injuries incurred as a result of falling more than 11 feet onto a cement surface while investigating a fire alarm at Williams' building in Highland Park, Illinois. Olson alleged the following. During the morning of October 20, 2006, Olson, acting within the scope of his employment as a Highland Park firefighter, investigated a "trouble fire alarm" at Williams' building. Within the building, there was an underground storage area that was accessed through an 11-foot drop-off in the ground floor. The drop-off was "guarded" by a "spring-loaded double door metal gate." As "a direct and proximate result of [Williams'] negligence," Olson "fell through the unlatched gate and down onto the underground storage area, and thus sustained severe and permanent injuries," including fractures of his spine. Williams had a duty "to exercise reasonable care in the ownership, operation, maintenance, possession and control" of its building, "including the spring-loaded double door gate and surrounding area providing access to the underground storage area within said building." Williams was negligent by failing to exercise reasonable care in the ownership, operation, maintenance, possession, and/or control of: (1) "the area surrounding the ground floor access to the aforementioned underground storage area by providing adequate lighting within said area"; (2) "the area surrounding the ground floor access to the aforesaid underground storage area by providing appropriate safety floor markings, or otherwise adequately warn, of the opening in the floor immediately behind the aforesaid double door metal gate"; and (3) "the aforementioned spring[-]loaded double door metal gate by failing to maintain and/or repair a malfunctioning latch and one or more springs which resulted in the doors remaining unlatched, ajar and inadequate to safely guard the opening in the ground floor leading to the approximately 11 feet, seven inch drop off to the floor of the underground storage area."
¶ 4 On April 6, 2011, Williams filed a motion for summary judgment, arguing that, pursuant to the common-law fireman's rule, Williams did not owe Olson a duty of care to prevent injuries occurring in the course of his occupation. In addition, Williams argued that Olson could not establish proximate cause because no one witnessed Olson fall and Olson could not recall how or why he fell.
¶ 5 Olson filed a response to Williams' motion for summary judgment, arguing that the common-law fireman's rule was inapplicable because Olson was not responding to an emergency, there was no connection between the trouble fire alarm and the defective condition of the premises that caused his injuries, and section 9f of the Fire Investigation Act (425 ILCS 25/9f (West 2006)) superseded the common-law fireman's rule. Olson also argued that there was sufficient direct and circumstantial evidence to conclude that Williams' negligence proximately caused his injuries.
¶ 6 Olson testified at his deposition that, on the morning of the incident, he was dispatched to Williams' building due to a "trouble alarm," which is a non-emergency call. There was no smoke or other evidence of fire when he arrived at the scene with Lieutenant Tim Pease and firefighter Andrew Seibel. Olson did not have a flashlight with him. His final recollections of the incident prior to his fall were that he proceeded into the building with Pease and Seibel, the area became darker, and he turned right toward a corner where he believed a light switch might be located. While Olson was attempting to locate a light switch, he turned to his right and extended an arm toward the corner. His turn involved a pivot maneuver, by taking at least one step and then bringing his left foot in line with his right foot. As Olson brought his left foot in line with his right, he felt something touching his right thigh and started to reach his left arm down. The next thing Olson recalled was striking his head and then lying flat on his back in a dark area.
¶ 7 Pease testified during his deposition as follows. On the date of the incident, Pease, Olson, and Seibel, a new recruit, responded to a trouble alarm at Williams' building. A trouble alarm is a non-emergency call: it "is generally a[n] issue with the system[;] *** it's generally a nuisance call." Pease was in charge of the crew that morning. It was a "bright sunny, beautiful day." Olson drove "Squad 33" to the Williams building, with the sirens off. As the engineer on the crew, Olson was responsible for finding the "knox box," a container holding keys to a building, which can be opened by a master key held by emergency personnel. Before they entered the building, Pease told Olson that he did not know where the alarm panel was located in the building. Pease testified that he had worked with Olson in the past and that he "is quite the professional. He is one of the more reliable senior guys or firefighters that I would depend upon. *** He is experienced, he is a very intelligent firefighter." Pease did not see what equipment Olson had with him when he left the vehicle.
¶ 8 Pease also testified as follows. He entered the building first. There was a little vestibule, and, because it was very bright outside, his eyes had to adjust to the dark interior. There was some visibility because the door was open. When the door closed, the light became very dim and he began using his flashlight. He did not recall whether Olson used a flashlight. In low-light situations, firefighters are trained to maintain contact with the building with their hands. To provide more visibility, Pease tried to find a light switch by placing his left hand on the wall. About 50 feet into the building there was a lighted vending machine. Olsen and Seibel walked close behind Pease. He could see them and they had "voice contact." They reached a partition wall. All three firefighters continued past the wall into the warehouse to search for the alarm. "The warehouse was like an abyss, you look out there and it was dark, dark, dark. You wouldn't know that there was anything to go down, it looked like it was just another room to me. *** [T]here was some lighting in there. It was dim."
¶ 9 Pease did not hear anything before Olson fell. When Seibel first told Pease that Olson fell, Pease did not understand what he was saying. Pease testified, "I called for his name. I mean he would have heard me, I was in close contact with him."
¶ 10 Seibel testified at his deposition that the warehouse was "just pitch black. You couldn't see anything. I couldn't see anything out there at all." After Olson fell, Seibel found the light switch as he made his way to Olson. The light switch was located by the stairway leading down to the lower level.
¶ 11 Olson deposed Williams' former vice president of operations, Lothar Loacker, who testified as follows. Although he had retired from day-to-day work at Williams in 2004, he had worked there since 1973, first as a service manager and then as a vice president of operations. Loacker was familiar with the double door gate in question and had seen it two or three days before the incident at issue. The gate opened outward, toward a person standing in front of it on the ground floor. The gate had a spring-type device that closed the gate if someone opened it and let it go. The gate did not have a latch that would keep the gate closed unless the latch was disengaged.
¶ 12 Loacker also testified as follows. Prior to the date of the incident, Williams had installed yellow- and black-striped safety tape on the floor near the gate. The tape served a safety function. The tape was not present on the day of Olson's fall, because it had worn out and had not been replaced. The tape was inexpensive and took about one hour to install near all of the five gates at Williams' warehouse. Lighting was necessary in the area where Olson fell. There was only one 100- watt, incandescent, bare lightbulb affixed to a steel beam about 17 feet above, 25 feet to the west of, and 12 feet to the south of, the gate at issue.
¶ 13 Mark Williams, owner and president of Williams, testified during his deposition as follows. It was feasible to install additional security lighting within the subject area of the warehouse. There is a large window, about 10-by-10 feet, that allowed light in the area where Olson fell. From the ground floor, the gate opened only inward, toward a person. If a person walked into the gate, the person was stopped because the hinges did not open over the drop-off in the floor.
¶ 14 Olson's retained expert, Michael Fagel, Ph.D., testified that, given the configuration of the room, the testimony of the witnesses, and his own examination of the gate in question, it was his opinion that the right side of the gate was likely open at the time of Olson's fall. Fagel further testified that the defective condition of the gate, inadequate lighting, and lack of safety tape caused or contributed to Olson's fall.
¶ 15 Highland Park police sergeant Carl Weaver testified at a deposition as follows. He responded to a call of "firefighter down" at the Williams building on the morning of the incident. Weaver might have pushed the gate closed, but he did not recall. Weaver explained that, when the right side of the gate was completely open, it came in contact with, and was stopped by, a metal desk or shelving unit that was attached to the wall. While working the midnight shift at least 10 years prior to Olson's fall, Weaver saw an open gate at Williams' building when he was responding to a false burglar alarm.
¶ 16 After investigating the scene on the morning of the incident, Highland Park police officer Richard Rash prepared a report. The report indicates that Rash investigated the scene approximately an hour after the incident. Rash stated in the report:
"I opened the gate to photograph the area. I noticed when I opened the left half of the gate it didn't spring shut after I let it go. It closed only half way and stopped. I opened the right side of the gate and noticed if I opened it all the way it wouldn't spring shut without some assistance."
¶ 17 Rash also provided the following deposition testimony. He prepared the report and prepared sketches of the areas in question, as requested by Weaver. Rash pulled open the left side of the gate at least 90 degrees and, when he "let it go," it "only closed partially[;] *** I believe half." When Rash opened the right side of the gate at least 90 degrees and "let it go," ...